Human Rights in Care Settings: Joint Committee on Human Rights reports

The Joint Committee on Human Rights has today (22 July) published its report into Human Rights in Care Settings, following an inquiry running since September 2021. I reproduce its summary below, although strongly recommend reading the underlying report for the full detail (full disclosure, I was the specialist adviser to the Committee for its inquiry)

This inquiry into protecting human rights in care settings follows a torrid few years for care users: the pandemic caused great suffering and isolated residents from their loved ones. We have sought to shed a light on the human rights most at risk in care settings, and what can be done to better protect them. We have focused on four main issues: the provision of medical and personal care; ongoing concerns about visiting arrangements; the complaints process for when things go wrong; and the coverage of the protections of the Human Rights Act 1998 (HRA) to all those in receipt of regulated care services. As health services are devolved, our inquiry focuses on care settings in England although we draw on experiences elsewhere where useful through this report.

The Government is under a number of domestic and international obligations relating to the provision of medical and personal care services. Together, these require that those in care settings should have access to the highest attainable standard of health, as protected by Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). They should also have their personal needs met, in light of the protection against torture and inhuman or degrading treatment (Article 3 of the European Convention on Human Rights (ECHR)) and the principle of human dignity. However, too often these standards are not met, and individuals suffer. The regulator for health and care services, the Care Quality Commission (CQC), must fulfil its duty to monitor providers’ compliance with the required standards, and hold providers accountable in a timely way. Where services are commissioned, the commissioning body must ensure that there is sufficient provision for monitoring and accountability by the contracting public authority, to allow it to identify whether human rights obligations are being discharged. Specific training on human rights and its effects on the provision of services must be given by all registered providers to staff with the CQC working with all stakeholders to ensure this is taking place.

Some care users have Do Not Attempt Cardio-Pulmonary Resuscitation Notices (DNACPR) in place. These make recommendations that CPR is not given in instances where a person stops breathing or their heart stops beating. During the pandemic we were hugely concerned to hear that these were being applied to care users without their knowledge, in a blanket fashion, contrary to the right to life under Article 2 ECHR. We were disappointed to hear that concerns remain about the use of such notices, with what is often poor consultation with care users and their families, insufficient record keeping, and inappropriate use. We call on the Government to work with stakeholders to raise awareness about the appropriate use of DNACPR notices.

We were also concerned to hear about ongoing issues with Deprivation of Liberty Safeguards (DoLS), the check that is put in place to ensure that detention in care settings is within the law and in line with the prohibition of torture and inhuman or degrading treatment under Article 3 ECHR, and the right to liberty and security, under Article 5 ECHR. There are often unacceptable delays in authorisation of DoLS and there is often no access to legal aid if care users wish to challenge their deprivation of liberty in court. Whilst the DoLS system is going to be replaced by a new Liberty Protection Safeguards System (LPS), there is no timetable for this to be rolled out. We ask that the Government must work with the regulator and all stakeholders to ensure that providers fully understand the functioning DoLS and comply with statutory requirements, and that access to legal aid for those who wish to challenge is widened. The Government should also set a timetable for rollout of the LPS system and keep us updated on progress.

We have reported before on the visiting arrangements for those in care settings during the pandemic. Evidence submitted to this inquiry showed that through and beyond the pandemic problems persisted with providers following guidance. We also believe a lesson learnt from the pandemic was the harm caused by blanket bans on visiting. We have called in the past for the Government to legislate and do so again here. The Government must introduce legislation to secure to care users the right to nominate one or more individuals to visit and to provide support or care in all circumstances, subject to the same infection prevention and control rules as care staff. The Government must also legislate to give the CQC the power to require care settings to inform them of any changes to their visiting status, and to report live data on levels of visiting and restrictions. The CQC must make compliance with visiting restrictions a key consideration when undertaking its regulatory and monitoring roles.

Under the HRA, public authorities must act compatibly with ECHR rights. Those providing care services in care settings, however, are not all public authorities. Unless care legislation, such as the Care Act 2014, contract law, or consumer standards provide equivalent protections, there is no way for privately funded individuals in private care settings to enforce human rights on the same basis as for those in publicly funded care settings. This can mean that two residents in the same care home might have different legally enforceable rights. We recommend that the Government should consult on extending the protections of the HRA to those receiving care and support from all regulated providers, and suggest a way this could be done through an amendment of the Care Act 2014.

When something goes wrong, the users of a service should have access to an effective complaints mechanism that is capable of investigating those complaints, and putting things right, in a way that is transparent, fair, and proportionate. However, the complaints system for care users is confusing, time consuming and too often does not result in effective resolution. The system needs to become easier to navigate. Care users must not be frightened of retribution if they complain. We recommend changes to streamline the process, with the roles of the CQC, the Local Government and Social Care Ombudsman (LGSCO), and the Parliamentary and Health Service Ombudsman (PHSO) clarified and with all three organisations operating a “no wrong door policy”.

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